|
Banned
|
Quote:
|
Originally Posted by Fotzlid
what it fails to mention is how much of a fight he was putting up or the circumstances surrounding his arrest (other than the DUI).
i've been spit on, punched and kicked by drunk people as well as being subjected to their bullshit ramblings and drunken bravado.
tough shit for him.
|
Quote:
http://lawlibrary.rutgers.edu/courts...73-06.opn.html
PER CURIAM
Plaintiff Russell Johnson appeals from the order of the Law Division granting defendants' summary judgment motion. In his cause of action, plaintiff alleged that police officers from Washington and Hamilton Townships used excessive force in the process of physically restraining him to permit medical staff employed by Robert Wood Johnson Hospital to extract a sample of his blood for the purpose of determining his blood alcohol content (BAC). At the time this occurred, plaintiff had been arrested and charged with driving while under the influence of alcohol (DWI).
The motion judge held that the law enforcement defendants were entitled to qualified immunity because, under the circumstances, the actions taken by the police officers were objectively reasonable, and thus entitled to the protections afforded by the qualified immunity doctrine. Plaintiff argues, however, that he presented sufficient evidence from which a rational jury could find that the degree of force employed here was excessive and amounts to a compensable claim against defendants. We disagree with plaintiff's argument and affirm.
In reviewing a matter on summary judgment, we will apply the same standards applicable in the trial court. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536-37 (1995); Prudential Property & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998); R. 4:46-2(c). Here, because the judgment presented for our review involved purely legal determinations, we owe no special deference to the trial court's analysis and ultimate legal conclusions. Shaler v. Toms River Obstetrics & Gynecology Assocs., 383 N.J. Super. 650, 657 (App. Div.), certif. denied, 187 N.J. 82 (2006).
Plaintiff presented evidence, in the form of deposition testimony, indicating that police officers from both municipalities injured him in the process of placing a handcuff onto his wrist. According to plaintiff, one officer "hung" on his wrist "with his weight." Plaintiff's fiancée Cynthia Baxter submitted a certification in opposition to defendants' summary judgment motion corroborating plaintiff's version of what took place.
Plaintiff presented the report of Michael S. Grenis, an orthopedic doctor who opined that as a result of this trauma, plaintiff sustained a permanent injury to his wrist, with unabated symptoms of "numbness" and "hypersensitivity." In this light, Dr. Grenis concluded that
[b]ecause of this condition, [plaintiff] has the restriction that he cannot safely lift heavy or fragile objects as the unpredictable sharp jolts of pain that come from any stress on the wrist which stretch the nerve may cause him to drop such fragile or heavy objects.
Finally, plaintiff also presented a report authored by Joseph J. Stine, a former police chief from Pennsylvania, who, after reviewing the records of the arrest and the encounter at the hospital, concluded that the force used by the officers involved in subduing plaintiff was unreasonable and excessive. Although this conclusion is disputed by defendants, the report was not challenged as inadmissible.
In an excessive force case, a court must determine whether the actions taken by the individual police officers were objectively reasonable in light of the facts and circumstances confronting them. De la Cruz v. Bor. of Hillsdale, 183 N.J. 149, 166 (2005).
In State v. Ravotto, 169 N.J. 227, 231 (2001), the defendant was charged with DWI, and forced to submit to a blood test. The Court concluded that the force used by the police was excessive, and thus warranted the suppression of the test results. Ibid. The Court cited the following facts in support of this conclusion.
Defendant was terrified of needles and voiced his strong objection to the procedures used on him. He shouted and flailed as the nurse drew his blood. Several persons, including the police, and mechanical restraints were needed to hold defendant down. Defendant's fear is relevant to our analysis. A suspect's reaction to law enforcement officials is part of the fact pattern considered by a reviewing court when it determines whether police behavior was objectively reasonable.
[Id. at 241.]
Here, by contrast, the motion judge made the following findings to support her conclusion that the actions taken by the police officers to restrained defendant were objectively reasonable:
You had a resisting individual that could have been endangering himself and the technician. I think he was waving his arm around and Kelly Mitchell was the technician there to take the blood. So they had to apply sufficient force to enable the test to be taken. <h3>And it's very unfortunate that there was an injury but I don't think you reason backwards. I don't think you look at the fact that there was an injury to reason backwards and say they should have done it in some other way.
You had officers there. They had handcuffs. He was a suspect. He was under arrest. He had been taken to the hospital. At the hospital, once they told him he was getting a blood test, he started to resist. They used the handcuff as part of holding his arm down in order to take the blood sample. He wasn't punched. . . . He wasn't hit with a baton. You know, what would a reasonable officer do under the circumstances? Try to hold him down in any way that was possible and reasonable.</h3>
It is also noteworthy that plaintiff's objections here were not based on a fear of needles or grounded upon religious belief.
Viewing all of the evidence presented from the light most favorable to plaintiff, we are satisfied that the actions taken by the police officers to restrain plaintiff were objectively reasonable. Defendants are thus entitled to the protections afforded by the qualified immunity doctrine.
Affirmed.
|
It looks like a "good shoot". The lesson seems to be, "don't drink and drive". Is this what it feels like to be a conservative? My anti establishment instincts fail me, in this instance.
dksuddeth, nothing happened when "authority" did this:
Quote:
http://www.songfacts.com/detail.php?id=1124
....That protest that day where everybody got shot was a protest against the expansion of the Vietnam War into Cambodia. It was a secret expansion, Nixon had done it the night before and we found out about it the next day - the whole nation did. They did it without an act of congress, without passing any new law or having any meetings. It was completely unconstitutional, so we're out there at noon, about 3,500 students at Kent State were out there. The governor, who certainly was a pro-war kind of guy, Governor Rhodes, he had placed the National Guard inside the heating plant of the school the night before anticipating what would happen when the students found out about Cambodia. Not only did he do that, but he waited until about 9 am on May 4th to declare Martial Law, which suspends all first amendment rights of The Constitution, meaning that any assembly is automatically illegal, you're automatically committing a crime. These National Guardsmen poured out of the heating plant, surrounded the protesters, and with a bullhorn announced that Martial Law had been declared and that we were all going to jail. Everybody starts chanting and screaming and they start shooting tear gas and some of the more ballsy protesters, while they're coughing and choking and puking are trying to throw it back, but most of the kids were anywhere from 50 to 100 yards away from these lines of National Guardsmen with guns. Nobody believed that the guns were actually loaded with live ammo. They just suddenly formed a row. The first one knelt and the second one stood, and they just shot right into the crowd, shot at all of us, down the hill at all of us. The worst thing about it is that 2 of the 4 students killed weren't part of the demonstration, weren't part of an antiwar group. They'd just come out of class from the journalism building at that time and come out on their way to their next class and were looking at the protest, just seeing what the hell's going on, and they got killed. The bullets just went everywhere, it was like a scatter-gun approach, like shooting geese. A lot of the bullets went over the heads of the protesters and kept going straight down the hill. One of the kids that's paralyzed for life was getting into his car to leave campus after his class, and they shot him in the back. He was at least 200 yards away and wanted nothing to do with what was going on. It was shocking.....
|
Get used to it, or die or go to prison, trying to stop it from happening again or protesting vigorously against it. You live in a place where most are preoccupied with Nascar, Monday night football, American Idol, or Jesus and the bible, it's the land of freedom called America.
Pick your shots. After what happened at Kent State, we had a song ("four dead in Oh-High-Oh"...) and everything. It was just eight months after Woodstock. It didn't help, nothing seems to. This country is much more conservative now than it was in early May, 1970. You need to raise awareness with the most grievous abuses of authority as examples, this "damaged wrist case", is not one of them.
We had a song about this guy, too. I once joined a protest outside the court at his murder trial in New Haven, and I saw him led out of the back of the court house in heavy chains:
Quote:
http://www.nybooks.com/articles/11119
Volume 13, Number 10 · December 4, 1969
A Special Supplement: The Trial of Bobby Seale
By Jason Epstein
....Seale, the Chairman of the Black Panther Party, is however in considerably more trouble than his fellow defendants, for under the New Haven murder charge he faces the death penalty. His defiant behavior in Judge Hoffman's court, which led to his being cited for contempt on November 5, may be understood partly in the light of this fact. But it also became apparent, as his outbursts continued, that he was forcing the Judge either to grant him his rights or to appear in a humiliating moral light.
It would be wrong, therefore, to regard Seale's actions as simply those of a desperate man whose difficulties in New Haven put him beyond any punishment Judge Hoffman might inflict. Seale had argued from the day the jury first entered the court on September 26 that he had been unfairly denied the counsel of his choice and was thereafter illegally denied his right to defend himself. The basis of his first charge was that Judge Hoffman had, unreasonably in Seale's opinion, refused to postpone the trial so that Charles Garry, Seale's San Francisco lawyer, who had successfully defended a number of Black Panthers in California, could attend the trial after his recovery from a major operation which was scheduled for September 15. The basis for Seale's second charge was that the judge, having refused the postponement, then refused to permit Seale to defend himself in Garry's absence. These charges were the substance of Seale's several outbursts in the following weeks, which Judge Hoffman was to recite with such eloquence on the afternoon of November 5, and for which he was to charge Seale with sixteen separate counts of contempt and sentence him to jail for four years, an unprecedented punishment for contempt of court.
In late August lawyers for the defense petitioned Judge Hoffman to postpone the trial so that Garry could attend it upon his recovery. On September 9, Garry himself came to Chicago to make the same plea. On both occasions the Judge, perhaps sensing a dilatory tactic, refused. On September 12 Seale was taken from his cell in a San Francisco jail where he was awaiting extradition to Connecticut, placed in a car by federal marshals, chained to two other prisoners, and driven by a circuitous route to Chicago where he was deposited in the Cook County Jail on the eighteenth.
During this period he was out of touch with the defense lawyers who were not only fearful for his safety but eager to consult with him on the preparation of their case. It was in order to see Seale in Cook County Jail that William Kunstler, one of the defense attorneys, filed an appearance on behalf of Seale, that is, agreed formally to serve as his attorney. It is partly on the basis of Kunstler's having filed this appearance that Judge Hoffman denied Seale the right of self defense.
The right of self defense is guaranteed under the Constitution as well as by statute and has often been exercised, especially by defendants who feel that they are on trial for their political views and who want not only to defend themselves but to use the court, insofar as rules of procedure allow, as a political forum. Judges are required to grant this right provided it is requested early enough in the trial so as not to interfere with an orderly proceeding. Thus, in two Smith Act cases, Eugene Dennis and Elizabeth Gurley Flynn defended themselves, and earlier this year so did ten of fourteen defendants on trial in Milwaukee for destroying draft records.[*]
On September 26, the jury having been chosen and the trial about to begin, Seale submitted to the Court a motion in his own hand asking that the trial be postponed to permit Garry to attend, but in the event that the Judge denied this motion, he wanted it known that he had "fired" his lawyer of record—William Kunstler—and would defend himself. The Judge ignored this motion. Later on the same day, however, after the lawyers for the government and those for the defense had completed their opening statements to the jury and the Judge had asked whether there were any other statements by lawyers before the first witness was called, Seale got to his feet and walked to the lectern which stood before Judge Hoffman's bench. "Just a minute, sir," the Judge asked, "who is your lawyer?"
"Charles R. Garry," Seale replied. The Judge then asked Kunstler whether he represented Seale and Kunstler replied, "No, your Honor, as far as Mr. Seale has indicated, that because of the absence of Charles R. Garry…"whereupon the Judge interrupted to ask Kunstler whether he had filed an appearance for Seale. Kunstler said that he had and the Judge then said that he would let Kunstler make an opening statement on Seale's behalf. Kunstler refused, saying that he "could not compromise Mr. Seale's position…that he was not his full counsel here," at which point the Judge cut him short and called in the jury.
September 26, the day on which this exchange occurred, was a Friday. On September 30, the following Tuesday, Kunstler moved formally to withdraw his appearance for Seale but the Judge denied the motion, presumably because the trial was now in its second full day and the interest of an orderly proceeding outweighed Seale's constitutional right to self defense. Seale, nevertheless, continued to insist that he had "fired" Kunstler and in Garry's absence would defend himself.
The Judge repeatedly denied Seale this opportunity and reminded him that Kunstler, "a very able criminal lawyer from New York," had filed a written as well as an oral appearance for him. The oral appearance to which the Judge referred was a statement made by Kunstler on September 24 that he and Leonard Weinglass, his colleague, would each represent four defendants, thus each lawyer would have a chance to cross-examine government witnesses separately.
It was not only Seale who wanted Garry's services. So did the other seven defendants. By the end of September it had become apparent to many observers in the Court that the Judge, in his haste to get on with the trial, might, by having refused the postponement, have denied all the defendants their constitutional right to counsel of their choice. In a private conversation at this time, Thomas Foran, the prosecutor, dismissed the possibility that the other seven defendants had grounds under the Sixth Amendment to an argument on appeal, but he admitted that he wasn't so sure that Seale's rights had not been violated. Accordingly Foran reminded the Judge that not only were the defendants represented by Kunstler and Weinglass as well as by two local lawyers, but that four other lawyers had filed appearances for the defendants but had never shown up. Foran wanted the record to show that all the defendants, including Seale, were adequately represented and that if an error had been made it was the fault of these four absent lawyers.
Kunstler replied that these four lawyers had never intended to participate in the trial but had agreed only to prepare pre-trial motions. Their work in this respect having been completed, their services were no longer needed. Judge Hoffman, however, responded to the government's tactic by issuing bench warrants for the arrest of the four lawyers, one of whom, a professor of law at UCLA, was awakened by a federal marshal, put on a plane to Chicago, and found himself the next morning, having been photographed and fingerprinted in Cook County Jail, in the lockup one floor above Judge Hoffman's courtroom. That morning, as the four lawyers were facing jail sentences for their failure to honor their appearances, Judge Hoffman told Kunstler that the keys to the County Jail were in the pockets of the defense, by which Kunstler assumed the Judge to mean that "if the defendants waived their right to counsel…with respect to Garry, then the jailhouse would open for these [four] attorneys." The defendants, who later described Judge Hoffman's tactic as "blackmail," refused to relinquish their claim to Garry's services and the Judge, two of whose warrants had been found invalid by the United States District Court in San Francisco and whose own court was now being picketed by angry lawyers from all over the country, was forced to back down.
Seale's demands, thereafter, increased in vehemence despite Judge Hoffman's warnings that if they continued Seale would be bound and gagged. On the afternoon of October 29, <h3>Seale was taken forcibly by two marshals through the door to the lockup and returned, ten minutes later, chained hand and foot to a metal chair. A gag of muslin was in his mouth.
The following morning, since the first gag had proved ineffective and the rattling of the chains against the metal chair had obviously disturbed the jury, Seale was brought to court strapped to a wooden chair. The gag that passed over his mouth and was tied in a knot at the nape of his neck was supplemented by another of the same muslin which passed under his chin and was tied in a sort of bow at the top of his head. Under the gag his mouth was taped. Seale sat quietly throughout most of the day, but as the afternoon session ended he managed to speak in a loud, if muffled, voice, once more insisting on his right to defend himself.
The following morning the gag was further strengthened by an elastic bandage and Seale's mouth was stuffed with some kind of cotton which the marshals had managed to insert by holding his nose. This forced him to open his mouth. The arrangement proved effective, but as Seale attempted to breathe the elastic bandage tightened around his head and he choked.</h3> Mr. Weinglass, at this point, petitioned the Court to loosen the gag and Judge Hoffman, having inquired whether the government agreed and upon the affirmative reply of the assistant prosecutor, Mr. Schultz, ordered the gag loosened.</b>
Kunstler and Weinglass then moved to recess the Court for the rest of the day so that one of them could fly to California and consult with Garry about a way out of the impasse. Upon the urging of the government lawyers, the Judge agreed. Mr. Schultz admitted that the gag and straps might damage the government's case in the eyes of the jury.
When the trial resumed on the following Monday, Seale entered the courtroom free of his gag and straps. However he continued to interrupt the proceedings, insisting on his right to defend himself, evidently aware that his demands, and Judge Hoffman's refusal to hear them, had put the Judge and, indeed, the judicial system itself in a most awkward position, a conclusion which the Chicago Bar Association confirmed at a press conference on the following day. By Wednesday morning the Judge recessed the Court to prepare the following statement which he read that afternoon.
II
The Transcript
(The following proceedings were had in open court, out of the presence and hearing of the jury: )
THE COURT: There is a matter that I wish to take up, gentlemen, before we proceed further with this trial.
I think, Mr. Witness, you may be excused and go into the witness room.
(Witness temporarily excused.)....
|
There used to be arrests and court trials of authorities who attacked unarmed civilians:
http://www.bostonmassacre.net/trial/acct-preston1.htm
But, that was before "our fathers brought forth, upon this continent, a new nation conceived in liberty", wasn't it?
Last edited by host; 12-20-2007 at 11:34 PM..
|